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1998 DIGILAW 875 (RAJ)

Hasan Singh v. State of Rajasthan

1998-08-13

AMRESH KUMAR SINGH

body1998
Honble SINGH, J.–Heard the learned counsel for the petitioner, the Public prosecutor and the learned counsel for the non-petitioner No.2. (2). The only question to be decided in this petition is whether the learned Judicial Magistrate, Hanumangarh is legally competent to take cognizance of the alleged offences u/S. 498A and 406 IPC and to inquire and try into the said offences under the code of Criminal Procedure Code. (3). The learned counsel for the petitioner has submitted that in the instant case, the marriage of non-petitioner No.2 had taken place at Dola in Punjab and the alleged offence of cruelty was committed in Punjab and not at Jhandawali, where the non- petitioner No.2 is presently residing after she was turned out of the house by the petitioner Hasan Singh. (4). The petition is contested by the non-petitioner No.1 and 2. (5). The facts of the case so far as they are relevant for the disposal of this petition may be briefly Stated as below :- (6). On 27th April,97 Smt. Paramjeet Kaur (non-petitioner No. 2) submitted a report in writing before the Dy.S.P., Hanumangarh. In the complaint it was alleged that the complainant Smt. Paramjeet Kaur was married to Shri Jagdish S/o Ganga Singh caste Bazigar r/o Jhurad Olak (Punjab). At the time of marriage, the complainants maternal uncle, maternal grand mother and uncle have collectively given sufficient items in dowry. After her marriage, the husband as well as in-laws of the complainant started treating the complainant with cruelty. She was given beatings and demands were also made for payment of Rs.10,000/- as well as the television. It was also alleged in the complaint that about one and half months from the date of filing of the complaint, the complaint was turned out of the house by her husband and in-laws and since that day, she is residing at Jhandawali (in District Hanuman- garh, Rajasthan). It was also alleged that a Panchayat was held and in the Panchayat, the husband of the complainant and her in-laws were requested to keep the complainant with them, but they refused and that they mis-appropriated the goods which had been given in dowry at the time of marriage of the complainant. (7). On the basis of the complaint submitted by Smt. Paramjeet Kaur (non-petitioner No.2), FIR No.222/93 was registered at Police Station, Hanumangarh Junction. (7). On the basis of the complaint submitted by Smt. Paramjeet Kaur (non-petitioner No.2), FIR No.222/93 was registered at Police Station, Hanumangarh Junction. After the investigation was completed, the report was submitted by the SHO of the police Station, Hanumangarh Junction on 31.12.93. That report was submitted against the accused petitioner Hasan Singh. On that basis of that report, the learned Judicial Magistrate took cognizance of the offence on 4th January,94. The police continued further investigation under sub-section (8) of Section 173 Cr.P.C.. After further investigation, a report was submitted by the SHO of the Police Station, Hanumangarh Junction in the court of the Judicial Magistrate, 1st Class Hanumangarh on 5th January, 96. In the report, it was mentioned that on further investigation, it was found that the marriage as well as the alleged offences had been committed beyond the jurisdiction of the Police Station, Hanumangarh Junction. Thus, by submitting the report u/S. 173(8) Cr.P.C. the SHO of the Police Station reported to the Judicial Magistrate that the alleged offences had been committed outside the jurisdiction of the court. (8). The report submitted by the SHO of the Police Station, Hanumangarh Junction under Section 173(8) Cr.P.C. was considered by the learned Judicial Magistrate and after hearing the arguments, an order was passed on 8th March,96. By his order dated 8th March,96 the learned Judicial Magistrate rejected the report submitted by the police u/S. 173(8) Cr.P.C. The learned Judicial Magistrate did not issue process against the additional accused persons and observed that there being no sufficient evidence against them, the question of issuing process against additional accused shall be considered u/S. 319 Cr.P.C. Thus, the learned Judicial Magistrate declined to issue process against the additional accused persons. (9). Arguments and charge against the petitioner Hasan Singh were heard on 29th August,96. The learned Judicial Magistrate found a prima facie case u/S. 406 and 498 A IPC against Hasan Singh and framed charges against him in respect of offences punishable u/S. 406 and 498 A IPC. The petitioner Hasan Singh against whom charged have been framed by the learned Judicial Magistrate u/Sec. 406 and 498 A IPC is the eider brother of Jagdish Singh and is thus, brother-in-law of the complainant Smt. Paramjeet Kaur. (10). The petitioner Hasan Singh against whom charged have been framed by the learned Judicial Magistrate u/Sec. 406 and 498 A IPC is the eider brother of Jagdish Singh and is thus, brother-in-law of the complainant Smt. Paramjeet Kaur. (10). The learned counsel for the petitioner has submitted that the alleged offences were not committed within the jurisdiction of any Criminal Court in Rajasthan; that the marriage of Smt. Paramjeet Kaur had taken place in Punjab and the offences punishable u/Ss. 406 and 498 A IPC were also committed in Pun- jab, and therefore, in view of the provisions contained in Sections 177,178 and 179 Cr.P.C., the learned Judicial Magistrate, Hanuman garh as no jurisdiction to take cognizance of the alleged offence and to try the accused petitioner. Reliance has been placed by the learned counsel for the petitioner on the report submitted by the police u/S. 173(8) Cr.P.C. in which it has been opined by the SHO of the Police Station, Hanumangarh that on investigation, it was found that the marriage as well as the alleged offences had been committed outside the jurisdiction of the police station, Hanumangarh Junction. (11). The learned counsel for the non-petitioner No.2 has submitted that according to the Statements recorded by the police u/S. 161 Cr.P.C. and the report submitted under Section 173(2) Cr.P.C., the marriage had taken place at Jhandawali in Hanumangarh (Rajasthan), and therefore, the entrustment of the property given by the non-petitioner No.2 at the time of her marriage, to the accused persons took place at Jhandawali, Hanumangarh (Rajasthan) and as such so far as the offence u/S. 406 IPC is concerned, the learned Judicial Magistrate, 1st class, Hanu- mangarh has jurisdiction to take cognizance of this offence and try the accused for the same. Regarding the offence u/S. 498 A IPC, the learned counsel for the non-petitioner No.2 has submitted that though, the alleged acts of cruelty were committed by the accused persons in Punjab, the consequences thereof ensued in Rajasthan, in as much as, the non-petitioner No.2 was forced to come to Jhandawali in order to live with the maternal uncle, and therefore, in view of the provisions contained in Section 179 Cr.P.C., the learned Judicial Magistrate, Hanumangarh has jurisdiction to take cognizance of the offence and try the accused for the said offence. (12). (12). I have carefully considered the arguments advanced by both the parties and perused the original record of the trial court. The question of jurisdiction in this case appears to be a mix question of law and fact. Ordinarily, at the time of taking cognizance, the averments made by the complainant or the facts Stated in the police report are taken into consideration for finding out whether the court taking cognizance has or has not the jurisdiction to take cognizance of the offence. But, in the instant case, the police has submitted the two reports, one u/S. 173(2) and 173(8) Cr.P.C. In the first report, the police Stated that the offence had been committed within the jurisdiction of the police station, Hanumangarh Junction, but in the later report, the police Stated that the marriage as well as offence had been committed outside the jurisdiction of the police station, Hanumangarh Junction. In the instant case, prosecution has been lodged by the State and so far as the jurisdiction of the court is concerned, the facts Stated in the two reports by the police are contradictory to each other. It is also pertinent to point out that the learned counsel for the petitioner has alleged that the last line of the Statements of the witnesses, who were examined u/S. 161 Cr.P.C. was added subsequently and thus that part of the Statement, in which it was Stated that marriage of non-petitioner No.2 had taken place at Jhandawali was a fabrication of the record and in fact that Statement was not made by the witnesses. (13). So far as the part played by the petitioner Hasan Singh and other mem- bers of the family including the husband of the non-petitioner No.2 is concerned, if the evidence is sufficient to proceed against the petitioner Hasan Singh for the offences u/Ss. 406 and 498 A IPC, there is no reason why the other accused should not be proceeded against. On the other hand, if the evidence collected by the police is not sufficient to proceed against other accused persons, on the ground that such evidence does not constitute sufficient ground to proceed against them, there is no reason why the petitioner Hasan Singh should be selected for being tried in this case. (14). On the other hand, if the evidence collected by the police is not sufficient to proceed against other accused persons, on the ground that such evidence does not constitute sufficient ground to proceed against them, there is no reason why the petitioner Hasan Singh should be selected for being tried in this case. (14). It is well established that u/S. 204 Cr.P.C., the Magistrate can proceed against one or more accused persons only if he is satisfied that there are sufficient ground to proceed against the accused for the alleged offences. Unless, he is so satisfied, he has no jurisdiction to proceed against them whether the accused were or were not arrested by the police during investigation. So far as the duty to proceed against the accused persons is concerned, it has been laid down by the Honble Supreme Court in Raghuvansh Dube vs. State of Bihar (1) that once the Magistrate take cognizance of the offence, it is his duty to find out, who the offenders are and to proceed against them if there is sufficient grounds to proceed. Thus, if the Magistrates have jurisdiction to take cognizance of the offence and he takes cognizance of the offence, it is his duty to find out who the offenders are and whether there is sufficient evidence to proceed against one or more alleged offen- ders. Where the evidence is same and more than one persons are involved in the commission of alleged offences, and the degree of probability of the allegations against all the alleged offenders is the same, in the absence of any legal restriction, there is no reason why the Magistrate should not proceed against all those persons against whom there is identical sufficient ground to proceed within the meaning of Sec. 204 Cr.P.C. If there are sufficient grounds against more persons than one and there is no legal impediment in issuing process against one or more persons, the right to equality under Article 14 of the Constitution imposes a duty on the Magistrate to accord similar promotion u/S. 204 Cr.P.C. to all the offenders against whom there is sufficient ground to proceed. Arbitrary selection of one or more offenders for trial and leaving other without any cogent reasons does not appear to be permitted by the cannons of justice and right to equality. (15). Arbitrary selection of one or more offenders for trial and leaving other without any cogent reasons does not appear to be permitted by the cannons of justice and right to equality. (15). In the instant case, the learned Magistrate has found no sufficient ground to proceed against the additional accused persons u/S. 204 Cr.P.C. for the alleged offences punishable u/Ss. 406 and 498 A IPC. The evidence against all the offenders is similar. In view of these facts, the interest of justice require that the charges framed by the learned Judicial Magistrate against the petitioner should be quashed and matter should be remanded for reconsideration. If there is sufficient ground to proceed against the petitioner Hasan Singh, it is difficult to understand why on the same evidence process should not be issued against the other accused persons. Viewed from this angle, the impugned order passed by the learned Judicial Magistrate deserves to be quashed and the matter needs to be reconsidered by him. The question of jurisdiction in the instant case is a mix question of law and fact. In order, the Magistrate may legally acquire the jurisdiction to take cognizance of the offence and may continue the proceedings initiated in his court, it is necessary for him to be satisfied that the alleged offences are within his jurisdiction in view of the provisions contained in Sections 177, 178 and 179 Cr.P.C. Having regard to all the facts and circumstances of the case, it would be proper to direct the Magistrate to inquire whether the alleged offences are within his jurisdiction u/Secs. 177 to 179 Cr.P.C. If in enquiry, the learned Magistrate comes to the conclusion that the offences are within his jurisdiction, he shall have to drop the proceedings. On the other hand, if the learned Judicial Magistrate comes to the conclusion that either or both of the offences are within his jurisdiction, he may proceed to consider who the offenders are and to issue process against all the offenders against whom there is sufficient ground to proceed, as indicated by their Lordships of the Honble Supreme Court in Raghuvansh Dube vs. State of Bihar (supra). (16). For the reasons mentioned above, the petition is partly allowed. The impugned order as well as the charges framed against the petitioner Hasan Singh are hereby quashed. (16). For the reasons mentioned above, the petition is partly allowed. The impugned order as well as the charges framed against the petitioner Hasan Singh are hereby quashed. The learned Judicial Magistrate is directed to make further in- quiry in order to find out whether the alleged offences are within his jurisdiction. If the Magistrate comes to the conclusion that either or both of the alleged offences are within his jurisdiction, he must apply his judicial mind to find out who the offenders are and to issue process and against all the alleged offenders, provided there be sufficient ground to proceed against them. (17). The petition is disposed of accordingly. A copy of the order alongwith the record of the lower court be sent to the trial court within a period of 15 days.